Sparks v. Hess

Citations

• 15 Cal. 186

Syllabus

<p>The lien which the vendor of real property retains, after an absolute conveyance, for the unpaid purchase money, is not a specific and absolute charge upon the property, but a mere equitable right to resort to it upon failure of payment by the vendee.</p> <p>This equitable right may be enforced in the first instance, and before the vendor has exhausted his legal remedy against the personal estate of the vendee. The Court, after determining theiamount of the lien, can, by its decree, either direct a sale of the property for its satisfaction, and execution for any deficiency, or award an execution in the first place, and a sale only in the event of its return unsatisfied, as the justice of the case may require.</p> <p>Where the contract of sale of real property is unexecuted, the vendor retaining the legal title for security until all the purchase money is paid, the vendor’s lien retained is different from the ordinary lien of a vendor after conveyance executed. In the latter case, the vendor has parted with the legal and equitable title, and possesses only a bare right, which is of no operative force or effect until established by the decree of the Court. In the former case, the vendor’s position is somewhat similar to that of a party executing a conveyanee and taking a mortgage back. He may sne at law for the balance of his purchase money, or file his bill in equity for the specific performance of the contract, and take an alternative decree, that if the purchaser will not accept a conveyance and pay the purchase money, the premises be sold to raise such money, and that the vendee pay any deficiency remaining after the application of the proceeds arising upon such sale.</p> <p>In such case of an unexecuted conveyance, the vendor may ask either a decree directing performance, and in case of refusal, a sale of the premises, or a decree barring the right of the vendee to claim a conveyance under the contract. He may, however, insist upon a sale where performance is